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The  Origin  and  Development 
of  the  Legal  Profession 


CHARLES   S.   WHEELER 


I 


THE    ORIGIN    AND    DEVELOPMENT 


LEGAL  PROFESSION 


BY 
CHARLES  S.  WHEELER 

OF   THE    SAN    FRANCISCO    BAR 


THE    FIRST  ANNUAL  ADDRESS 

BEFORE  THE    STANFORD  LAW  ASSOCIATION 

STANFORD   UNIVERSITY 

MAY  21,  1903 


SAN    FRANCISCO 

THE    MURDOCK    PRESS 

1903 


r 


THE    ORIGIN    AND    DEVELOPMENT    OF 
THE    LEGAL    PROFESSION. 


Ladies  and  Gentlemen: 

At  the  main  entrance  to  the  yamun,  or  official 
dwelling,  of  each  Chinese  magistrate,  is  a  raised  plat- 
form. Upon  this  platform  are  a  table  and  a  magistral 
chair.  Around  the  room  are  hung  whips,  bamboo 
rods,  and  other  instruments  of  punishment. 

The  place  is  always  open  to  whomsoever  will  enter, 
and  a  gong  hangs  within  easy  reach.  Any  Chinese 
subject  who  feels  himself  aggrieved  may  freely  come 
by  day  or  by  night  and  beat  the  gong.  The  magis- 
trate, in  obedience  to  the  ancient  code,  must  instantly 
don  his  official  robes,  come  forth  and  occupy  the 
chair  of  justice,  and  then  and  there  take  action  in 
the  case. 

This  method  of  invoking  justice  is  the  same  to-day 
as  in  the  days  of  Yao  and  Shun,  and  had  prevailed  in 
China  for  more  than  two  thousand  years  ^  before 
Christ  suffered  on  Calvary. 

When  the  Master  was  placed  under  arrest  in  the 
Garden  of  Gethsemane,  you  will  remember  that  the 

•  Holcombe— "  The  Real  Chinaman." 


4  THE  ORIGIN  AND  DEVELOPMENT 

hour  was  about  midnight;  that  he  was  taken  to 
the  palace  of  Caiaphas,  the  high-priest  and  president 
of  the  Sanhedrin.  There  he  was  brought  before  a 
committee  of  the  Sanhedrin — a  sort  of  court  of  first 
instance;  and  this  was  ere  the  first  crowing  of  the 
cock.  He  was  bound  over  to  appear  before  the  full 
Sanhedrin  (the  seventy),  and  daylight  was  but 
breaking  when  this  remarkable  body — the  Supreme 
Court  of  the  nation — convened/ 

The  Constitution  of  the  State  of  California  de- 
clares that  "  The  Supreme  Court  .  .  .  shall  always 
be  open  for  the  transaction  of  business." 

Thus,  in  these  widely  separated  times  and  places 
and  among  these  wholly  different  peoples,  we  find  an 
idea  common  to  all, — the  courts  are  always  open  to 
those  who  seek  redress.  The  Chinese  courts  of  four 
thousand  years  ago  and  the  Sanhedrin  of  the  Jews 
doubtless  offered  facilities  for  invoking  the  court  on 
short  notice  which  are  not  at  hand  to-day;  but  the 
fundamental  conception  is  nevertheless  the  same, — 
"  the  eye  of  Justice  never  sleeps." 

It  is  not  surprising  that  we  find  this  similarity  of 
idea.  The  object  of  the  judicial  systems  of  the  world, 
whatever  their  composition  and  method,  is,  of  course, 
the  same.  Laws  defining  the  higher  crimes  and 
felonies  are,  and  always  have  been,  alike  the  world 

'Watson— "The  Life  of  the  Master";  Renan— "Life  of  Christ"; 
Books  of  Matthew,  Mark,  and  John. 


OF  THE  LEGAL  PROFESSION.  5 

over.  It  is  in  the  administration  of  the  law,  in  the 
forms  of  procedure,  in  the  rules  of  evidence,  in  the 
rights  guaranteed  to  the  accused,  in  the  nature  and 
extent  of  the  punishment,  and  in  the  segregation 
of  the  judicial  from  the  legislative  and  executive 
branches  of  government,  that  the  great  difference  lies. 

You  v^^ill  at  once  follow  me  when  I  call  your  at- 
tention to  the  fact  that  the  presence  of  advocates  in 
courts  of  justice  has  from  the  earliest  times  depended 
upon  the  grace  or  caprice  of  the  ruling  power. 

And  the  ruling  power  has  not  always  been  gracious 
in  this  regard.  Lawyers  have  not  always  been 
wanted.  In  More's  "Utopia,"^  he  tells  us  that  in 
that  happy  isle  "they  utterly  exclude  and  banish  all 
"  attorneys,  proctors,  and  Serjeants  at  the  law,  which 
"  craftily  handle  matters  and  subtily  dispute  of  the 
"  laws." 

We  have  at  least  three  Utopian  attempts  of  this 
kind  to  point  to : — 

Milton  says  of  the  Muscovites  in  his  time:  "They 
"  have  no  lawyers,  but  every  man  pleads  his  own 
"  cause,  or  else  by  bill  or  answer  in  writing  delivers 
"  it  to  the  duke ;  yet  justice,  by  corruption  of  inferiors, 
"  is  much  perverted"  ^ 

Two  hundred  years  later  Wallace  writes  concern- 
ing the  administration  of  justice  in  Russia's  lawyer- 

»  Edition  London,  1808,  pp.  155-156. 
» Hortensius,  20. 


6  THE  ORIGIN  AND  DEVELOPMENT 

less  courts:  "Suffice  it  to  say,  that  in  general  the 
"  chancelleries  of  the  courts  were  dens  of  pettifogging 
"  rascality."  ^ 

In  1864  a  new  judicial  system  was  introduced  in 
Russia,  and  since  that  time  it  has  had  a  duly  author- 
ized bar. 

China  has  been  a  victim  of  Utopian  justice  for  the 
last  forty-five  hundred  years. 

"The  Chinese,"  says  Holcombe,^  "have  an  invin- 
"  cible  repugnance  to  lawyers.  Their  strongest  ob- 
"  jection  to  all  Western  modes  of  judicial  procedure 
"  is  the  existence  and  employment  of  lawyers  in  our 
"  courts.  Said  a  distinguished  Chinese  statesman  to 
"  the  author:  '  We  can  trust  our  own  judgment  and 
"  'common  sense  to  get  at  the  merits  of  any  case,  and 
"  *do  substantial  justice.  We  do  not  need  to  hire  men 
"  'to  prove  that  right  is  wrong  and  wrong  right.'  " 

Let  us  look  in  upon  a  Chinese  court  of  justice, — that 
abode  of  wisdom  where  they  do  not  need  lawyers  to 
tell  them  that  what  they  call  right  is,  in  truth,  most 
dreadful  outrage  and  wrong. 

Parties  litigant  and  witnesses  approach  the  court 
on  hands  and  knees,  and  must  so  remain  while  in  the 
presence  of  the  court.  With  the  witness  in  this  atti- 
tude, his  testimony  is  taken.  The  magistrate  himself 
does  the  questioning.    If  the  case  is  a  criminal  case, 

'  Wallace— "Russia"  (1877),  p.  560. 
''"The  Real  Chinaman,"  pp.  200-201. 


OF  THE  LEGAL  PROFESSION.  ^ 

he  does  his  utmost  to  extort  a  confession  from  the 
prisoner.  He  uses  all  artifices, — flattery,  cajolery, 
threats,  cunning,  and  clever  cross-examination;  and 
if  these  do  not  serve  his  purpose,  he  resorts  to  tor- 
ture. The  unfortunate  witnesses  are  similarly 
treated.  It  is  not  uncommon  for  a  judge  to  stop  in 
the  midst  of  an  examination  and  order  the  witness  to 
be  beaten  across  the  mouth  with  a  bamboo  switch 
until  the  blood  flows.  Witnesses  may  be  made  to  kneel 
for  hours  upon  chains,  or  triced  up  by  the  thumbs, 
or  starved  into  giving  so-called  "testimony."  ^ 

The  next  illustration  we  find  nearer  home. 

The  Massachusetts  Body  of  Liberties,  adopted  in 
1641,  undertook  to  discourage  the  building  up  of  a 
legal  profession,  by  declaring  that  those  who  pleaded 
the  cause  of  others  should  receive  no  pay  for  it.^  The 
result  was,  that  down  to  the  close  of  the  seventeenth 
century  Massachusetts  had  no  bar.  It  was  during 
that  period  that  the  courts  of  Massachusetts  sank  into 
a  condition  which  would  put  to  shame  even  a  Chinese 
tribunal.  During  that  period  there  was  cast  upon  the 
pages  of  the  judicial  history  of  America  the  foulest 
blot  they  have  ever  suffered.  I  refer  to  the  witch- 
craft trials. 

How  the  blood  of  an  American  of  to-day  boils  as 
he  reads  the  story  of  those  awful  murders!  The  utter 

'  Holcombe — "The  Real  Chinaman,"  p.  209. 

*  "Two  Centuries'  Growth  of  American  Law,"  p.  14. 


8  THE  ORIGIN  AND  DEVELOPMENT 

disregard  of  rules  of  evidence,  the  outrageous  inter- 
ference of  the  judges  with  the  functions  of  the  jury, 
the  compelling  of  the  accused  to  bear  witness  against 
themselves, — in  short,  the  absence  of  the  bar, — are 
painfully  apparent  at  every  stage  of  the  proceedings. 

When  the  poor  wife  of  Nathaniel  Gary,  of 
Charlestown,  was  brought  before  the  justices  for  ex- 
amination, she  was  forced  to  stand  with  her  arms 
stretched  out.  "  I  did  request,"  says  her  husband  in 
Robert  Calef's  account,^  "  that  I  might  hold  one  of 
"  her  hands,  but  it  was  denied  me;  then  she  desired 
"  me  to  wipe  the  tears  from  her  eyes,  and  the  sweat 
"  from  her  face,  which  I  did;  then  she  desired  that 
"  she  might  lean  herself  on  me,  saying  she  should 
"  faint.  Justice  Hathorne  replied,  '  she  had  strength 
"  'enough  to  torment  these  persons,  and  she  should 
''  'have  strength  enough  to  stand.'  " 

Giles  Cory,  charged  with  witchcraft  at  Salem  in 
1692,  refused  to  reply  to  questions  before  a  jury,  and 
for  this  offense  he  was  put  in  a  machine  of  torture  and 
pressed  to  death! 

These  tales  of  judicial  horror  which  I  have  told 
you  are  not  stories  of  wild  and  barbarous  tribes. 
They  are  the  stories  of  organized  society  in  widely 
separated  peoples  and  places.  And  they  are  stories  of 
attempts  to  carry  on  the  administration  of  human 
justice  without  the  aid  of  lawyers. 

' "  More  Wonders  of  the  Invisible  World,"  (1700). 


OF  THE  LEGAL  PROFESSION.  9 

Well  might  Justinian  exclaim :  *'  Praiseworthy  and 
"  necessary  for  human  life  is  advocacy."  ^ 

The  bar  of  France,  the  order  of  advocates, — the 
Noblesse  de  la  Robe, — had  gone  out  in  a  river  of 
loyal  blood  during  the  Revolution.  We  are  not  sur- 
prised that  Napoleon  in  1804  decreed  the  re-estab- 
lishment of  the  order,  "as  one  of  the  means  most 
"  proper  to  maintain  the  probity,  delicacy,  disin- 
"  terestedness,  desire  of  conciliation,  love  of  truth 
"  and  justice,  an  enlightened  zeal  for  the  vs^eak  and 
"  oppressed,  which  are  the  essential  foundation  of 
"  their  profession." 

Let  us  now  turn  our  attention  to  the  origin  and 
development  of  the  legal  profession. 

Its  germ  will  be  found  in  the  human  sympathies. 
In  the  rudimentary  courts  of  ancient  days,  the  suitor 
was  required  to  appear  and  make  his  address  in  per- 
son. Next,  as  a  first  step  toward  the  profession,  we 
find  it  permitted  that  the  parent  may  plead  in  court 
in  behalf  of  his  child,  the  husband  for  the  wife,  the 
wife  for  the  husband,  or  the  son  or  daughter  for  the 
aged  parent;  next,  the  master  is  allowed  to  address 
the  court  in  behalf  of  the  servant  or  dependent;  next, 
the  sick,  the  aged,  the  deaf,  the  dumb,  the  blind,  are 
allowed  to  appoint  another  to  plead  for  them,  though 
the  person  so  appointed  is  not  a  relative;  then  friend 
is  permitted  to  appear  for  friend,  but  without  re- 

•  Cod.  II,  Tit.  VIII,  23. 


10  THE  ORIGIN  AND  DEVELOPMENT 

ward.  At  length  a  distinct  profession,  of  men  who 
are  paid  for  their  services,  is  recognized  by  the  laws, 
and  finally,  after  centuries  of  growth,  the  calls  of 
humanity  are  listened  to,  and  no  person  is  so  poor  or 
friendless  that  he  may  not  command  a  man  of  edu- 
cation, skilled  in  the  law  and  in  the  practice,  to  advise, 
defend,  and  plead  for  him.  If  the  action  be  a  civil 
action,  and  the  cause  be  just,  the  duty  is  enjoined  on 
the  lawyer  not  to  refuse  the  cause  for  considerations 
personal  to  himself.  If  a  man  be  charged  with 
crime,  and  is  too  poor  and  friendless  to  employ  a 
lawyer,  the  court  will  give  him  one,  and  the  lawyer 
appointed  is  bound  to  serve  or  he  will  be  disbarred. 
Such,  in  syllabus,  are  the  steps  which  mark  the  ori- 
gin and  development  of  the  legal  profession. 

The  position  of  the  bar  in  England  and  America 
to-day  did  not  merely  happen  to  be  what  it  is.  It  is 
the  result  of  twenty-five  hundred  years  and  more  of 
growth  and  civilization. 

Homer  gives  us  a  picture  of  a  trial  in  ancient 
Greece.  Describing  the  pictorial  emblazonings  on 
the  shield  which  Vulcan  fashioned  for  Achilles,  he 
tells  us  that, — 

"  There  in  the  forum  swarm  a  numerous  train: 
The  subject  of  debate,  a  townsman  slain. 
One  pleads  the  fine  discharged,  which  one  denied, 
And  bade  the  public  and  the  laws  decide. 
The  witness  is  produced  on  either  hand; 
For  this  or  that  the  partial  people  stand. 


OF  THE  LEGAL  PROFESSION.  II 

The  appointed  heralds  still  the  noisy  bands, 
And  form  a  ring  with  scepters  in  their  hands. 
On  seats  of  stone  within  the  sacred  place 
The  reverend  elders  nodded  o'er  the  case. 
Alternate  each  the  attesting  scepter  took, 
And  rising  solemn  each  his  sentence  spoke."  ^ 

We  see  no  mention  of  a  lawyer  in  the  passage. 

In  the  democracy  of  Athens  the  power  to  judge 
was  not  only  in  the  people  in  theory,  but  in  fact  a  sub- 
stantial portion  of  the  populace  sat  in  judgment  in 
the  courts  of  justice.  State  trials  took  place  before 
the  people  at  large,^  while  ordinary  civil  and  crim- 
inal actions  were  tried  before  a  court  of  five  hundred 
Dicasts, — a  body  of  six  thousand  men  annually  chosen 
by  lot  indiscriminately  from  all  classes.  This  body 
was  arranged  in  divisions  of  five  hundred  each;  but 
frequently  several  divisions  sat  together.^  It  is  diffi- 
cult to  comprehend  how  such  a  throng,  swayed  by 
the  orators,  and  unguarded  as  to  passion  and  preju- 
dice, could  have  been  looked  to  for  substantial  justice. 

In  the  time  of  Demosthenes,  the  unfortunate  pris- 
oner was  brought  before  the  people.  The  public 
prosecutor  stated  the  charge  and  produced  the  evi- 
dence, which  had  theretofore  been  taken  before  a 
magistrate.  He  might  be  followed  by  any  other 
speakers  who  wished  to  aid  the  prosecution.  The 
prisoner  was  compelled  to  plead  his  own  cause,  often 

'  Pope's  Ilaid,  Book  XVIII.  3  ib.  35  ;  ib.  87. 

'  Forsyth's  Hortensius,  42. 


12  THE  ORIGIN  AND  DEVELOPMENT 

in  chains.^  No  one  could  speak  in  the  prisoner's 
behalf,  unless  the  prisoner  labored  under  some  dis- 
ability, and  then  a  member  of  his  family  or  some 
friend  spoke  for  him.  Lawyers  authorized  to  speak 
for  men  in  the  courts  were  unknown.^  The  mode  of 
trial  at  Athens  to  which  I  have  alluded  made  it  de- 
sirable that  the  address  of  the  litigant  or  the  accused 
should  carry  the  vast  audience  of  judges  who  sat  in 
the  cause.  This  gave  rise  to  a  class  of  professional 
speech-writers, — the  Rhetoricians, — with  whose  ef- 
forts the  literature  of  Greece  is  so  rich.  We  see  in 
these  speech-writers  the  embryo  of  the  legal  adviser, 
for  the  rhetorician  advised  his  client  in  what  manner 
he  should  address  the  court. 

At  length  a  great  and  good  Athenian,  who  should 
be  sainted  by  the  bar,  named  Antiphon,  about  440 
B.  c,  set  the  fashion  for  charging  fees  for  writing 
speeches.  We  may  say  that  with  that  happy  event 
the  germ  of  the  profession  is  fairly  fertilized. 

In  Rome,  under  the  republic,  patrons  spoke  in 
court  in  behalf  of  their  clients,  and  orators  argued 
lustily,  if  not  always  eloquently,  against  their 
country's  unfaithful  servants,  or  in  behalf  of  their 
fellow  citizens  whose  suffrages  and  favor  they  desired 
in  the  elections.  Fees  were  not  allowed.  Presents, 
even,  from  client  to  advocate  were  forbidden  by  law. 

'  Forsyth's  Hortensius,  36. 
» lb.  23-25. 


OF  THE  LEGAL  PROFESSION.  13 

Boys  at  seventeen,  without  legal  preparation,  were 
regularly  brought  to  the  bar.  The  speakers  in  the 
courts  were  generally  without  much  education  in  the 
law.  Advocacy  was  the  road  to  political  popularity 
and  advancement.  This  was  the  all-sufficient  reward. 
To  accuse  an  unpopular  official  in  behalf  of  the  state 
was  a  coveted  privilege.  To  defend  an  influential 
citizen  was  the  next  best  thing.  The  lawyer-dema- 
gogue was  there  in  his  element.  But  the  woes  of  the 
humble,  the  stranger,  the  poor  and  oppressed,  seem 
to  have  been  passed  unheeded  by  the  unpaid  patrician 
pleaders  at  the  bar  of  Rome  prior  to  the  Christian  era. 

The  great  lawyers  of  that  age  were  the  Juriscon- 
sults, who  gave  advice  on  points  of  law,  but  did  not 
plead  in  the  courts.  The  Jurisconsults  were  hard 
students,  worked  with  their  books,  and  did  much  to 
develop  Roman  law. 

Laws  passed  two  hundred  years  before  Christ  pre- 
vented the  patrons  from  collecting  fees  from  their 
clients,  rich  or  poor;  but  the  Jurisconsults,  like  the 
Rhetoricians  of  Athens,  were  allowed  to  charge  for 
their  services.  The  result  of  thus  making  it  possible 
for  a  man  to  devote  his  life  to  the  law,  and  at  the 
same  time  to  earn  a  livelihood,  created  a  distinct  pro- 
fession of  the  Jurisconsults.  The  effect  upon  the 
jurisprudence  of  that  time  was  what  it  has  always 
been  where  the  profession  has  received  recognition; 
for,  as  Duruy  says  of  the  Jurisconsults,  "They  took 


14  THE  ORIGIN  AND  DEVELOPMENT 

"  in  hand  the  cause  of  the  weak,  .  .  .  they  gave  rights 
''  to  those  who  had  so  long  been  regarded  as  incapa- 
"  ble  of  receiving  them,  the  son,  the  wife,  the  mother, 
"  all  those  disinherited  by  nature,  family,  and  law, 
"  the  spurious,  the  freed,  the  slave,  and  even  the  in- 
"  sane,  whom  they  sought  to  protect  against  him- 
''  self."  1 

The  Roman  advocate,  though  unpaid,  was  not 
necessarily  without  a  sense  of  professional  responsi- 
bilities. Though  perhaps  not  learned  in  the  law,  he 
would  confer  with  some  jurisconsult  and  so  prepare 
himself.  Some  of  the  advocates,  however,  were  them- 
selves able  lawyers.  Such  a  lawyer  was  Cicero,  and 
you  will  sympathize  with  his  disgust  at  the  herd  of 
pettifoggers  who  surrounded  him  in  the  forum,  when 
he  says:  "What  can  be  conceived  more  disgraceful 
"  than  that  a  man  who  professes  to  be  able  to  under- 
"  take  the  cause  of  his  friends,  and  assist  those  who 
"  are  in  difficulty,  and  throw  the  shield  of  his  protec- 
"  tion  over  the  weak,  should  so  blunder  in  the  easiest 
"  and  most  trifling  causes  as  to  appear  to  some  an 
"  object  of  pity,  to  others  of  contempt."^ 

The  views  of  Cicero  and  his  contemporaries  re- 
garding the  advocate  and  the  views  of  the  Juriscon- 
sults as  to  what  a  legal  adviser  should  be  gave  to  the 
profession  at  the  fall  of  the  republic  distinct  ideals. 

'  Duruy  — "  History  of  Rome,"  Vol.  VI,  pt.  ii,  353. 
^  Hortensius,  113. 


OF  THE  LEGAL  PROFESSION.  15 

Oratory  cannot  thrive  where  there  is  no  freedom 
of  speech.  With  the  fall  of  the  republic  freedom  of 
speech  in  Rome  was  gone.  The  love  of  power  and 
political  advancement,  which  had  brought  Rome's 
greatest  men  to  plead  in  the  courts,  could  be  gratified 
by  political  rewards  no  longer. 

The  result  was  that  advocates  began  to  work  for 
pecuniary  reward  where  once  the  only  remuneration 
for  which  they  struggled  had  been  the  hope  to  fur- 
ther their  popularity  and  their  political  ambitions. 

Here  was  the  complete  overthrow  of  ancient  pro- 
fessional tradition.  The  commercializing  of  the  pro- 
fession has  from  the  reign  of  Augustus  on  been  a  thorn 
in  the  flesh  of  the  old  school  and  its  followers.  To 
turn  a  profession  which  was  founded  on  the  human 
affections  and  sympathies  to  commercial  use  was  be- 
neath the  dignity  of  a  patrician — below  the  contempt 
of  a  Roman  gentleman. 

No  wonder  that  the  new  bar  was  jeered  at,  frowned 
down  upon,  criticised  and  satirized  most  unmerci- 
fully during  the  first  century  of  the  empire.  Curious- 
ly enough,  the  legal  profession,  in  the  transition  from 
the  republic  to  the  empire,  had  become  common  and 
democratic.  There  was  doubtless  an  extreme  com- 
mercialism for  a  time.  Such  was  the  natural  result 
of  the  new  condition.  Men  probably  pursued  wealth 
as  eagerly  as  they  had  been  wont  to  pursue  ambition. 

It  is  in  this  period  that  Juvenal  and  Martial  make 


l6  THE  ORIGIN  AND  DEVELOPMENT 

the  new  bar  of  the  empire  their  target.  One  cannot 
but  be  impressed  with  the  pictures  which  these 
writers  draw  of  the  bar  of  that  day,  and  one  is  forced 
to  admit  that  they  would  serve  fairly  well  on  occa- 
sions at  the  present  day. 

Juvenal  (about  no  A.  D.)  says  in  his  Seventh 
Satire: — 

"  Say  now,  what  honors  advocates  attend. 
Whose  shelves  beneath  a  load  of  volumes  bend? 
Their  voice  stentorian  in  the  courts  we  hear, 
But  chiefly  when  some  creditor  is  near. 
A  show  of  business,  eager  for  display. 
Their  lungs,  like  panting  bellows,  work  away." 

But,  despite  gibes  and  pasquinades,  the  new  bar  had 
within  itself  all  of  the  possibilities  of  growth.  It  is 
usual  for  writers  to  tell  of  the  sad  state  into  which 
jurisprudence  had  fallen  during  the  empire.  But  it 
seems  to  me  that  never  has  the  bar  done  more  for  the 
benefit  of  all  mankind  than  it  did  in  the  first  six 
centuries  after  Christ.  The  contributions  to  the  sub- 
stantive literature  of  the  law  were  never  so  numerous 
or  so  important.  That  literature  has  led  the  world 
out  of  the  dark  ages.  It  owes  its  existence  only  indi- 
rectly to  emperors  and  their  edicts.  Nor  does  it  come 
from  the  bench.  The  bar  is  directly  responsible  for 
it.  Thus,  in  529,  when  the  Code  of  Justinian  was 
given  to  mankind,  that  emperor  called  to  the  assist- 
ance of  his  ministers  of  state  one  Theophilus,  who  was 
a  professor  of  law  in  Constantinople,  and  two  eminent 


OF  THE  LEGAL  PROFESSION.  17 

court  pleaders  of  the  day.  And  when,  in  the  next 
year,  Justinian  turned  to  jurisprudential  law  and  set 
Trebonius  at  work  upon  the  Pandects,  the  latter 
called  to  his  assistance  sixteen  persons,  of  whom  four 
were  law  professors  and  eleven  were  members  of  the 
bar.^ 

The  lawyers  in  those  days  were  by  no  means  inde- 
pendent in  their  selection  of  clients  or  of  causes.  The 
presiding  judge  could  assign  counsel  to  either  side  in 
cases,  whether  civil  or  criminal;  and  if  any  advocate 
refused  to  act  for  insufficient  reasons  he  was  to  be  dis- 
barred forever. 

Little  has  thus  far  been  written  of  the  bar  of  the 
dark  ages.  We  know  that  there  were  pleaders,  and 
we  find  them  still  showing  the  hereditary  weakness 
of  the  profession.  In  Greece  and  Rome,  for  example, 
it  had  been  found  necessary  in  early  times  to  introduce 
the  water-glass  in  order  to  shut  ofif  eloquence.  When 
the  water  had  run  out,  the  pleader  was  bound  to  come 
to  a  halt.  And  similarly  in  the  Germanic  tribes,  dur- 
ing the  dark  ages,  advocates  were  allowed  to  plead, 
after  securing  permission  of  the  judge ;  but  they  were 
enjoined  to  conduct  their  cases  in  "plain,  unadorned 
"  language,  without  any  tedious  circumlocution."^ 

Beaumanoir,  speaking  of  the  early  French  lawyers, 
says  that  "  it  is  a  great  hindrance  to  judges,  who  have 

•  Murhead's  Roman  Law,  377-379. 
'  Hortensius,  209, 


1 8  THE  ORIGIN  AND  DEVELOPMENT 

"  to  listen  to  them,  to  hear  long  speeches  which  have 
"  nothing  to  do  with  the  case."^ 

Some  will  think  that  we  still  find  a  relic  of  these 
dark  ages  in  the  rule  of  our  own  Supreme  Court, 
which  allows  to  each  side  but  one  hour  for  argument! 

The  bar  emerged  from  its  obscurity  with  the  Cru- 
saders. We  hear  of  it  in  Jerusalem  in  1099,  when 
Godfrey  de  Boulogne  ascended  the  throne  of  the 
Holy  City.  He  established  courts  and  a  bar  and  an 
admirable  ethical  code. 

But  it  is  with  the  bar  of  England,  France,  and 
America  that  we  are  most  concerned. 

Without  going  into  the  formative  period  of  the 
English  bar,  the  details  of  which  are  very  obscure, 
it  is  suiBcient  to  say  that  it  is  in  the  reign  of  Edward 
the  First  (1272-1307)  that  the  legal  profession  first 
assumes  something  of  a  definite  shape.  The  Serjeants 
at  law,  or  Serjeant  counters,  made  up  the  counselors 
of  the  period.  They  had  undoubtedly  appeared  as 
pleaders  in  court  from  very  ancient  times.  They  are 
a  much  older  order  than  the  attorneys. 

The  "Mirror  des  Justices,"  written  in  the  reign  of 
Edward, — say  about  1300, — prescribes  the  code  for 
a  pleader  of  that  day: — 

"  First,  that  he  be  a  person  receivable  in  judgment; 
"  that  he  be  no  heretic,  excommunicate  person,  nor 
"  criminal,  nor  a  man  of  religion,  nor  a  woman,  nor 

'  Hortensius,  216. 


OF  THE  LEGAL  PROFESSION.  1 9 

a  beneficed  clerk  with  cure  of  souls,  nor  under  the 
age  of  twenty-one  years,  nor  judge  in  the  same 
cause,  nor  attainted  of  falsity  against  the  right  of 
his  office.  Secondly,  every  pleader  is  to  be  charged 
by  oath  that  he  will  not  maintain  nor  defend  what 
is  wrong  or  false  to  his  knowledge,  but  will  fight 
for  his  client  to  the  utmost  of  his  ability.  Thirdly, 
he  is  to  put  in  before  the  court  no  false  delays  (dila- 
tory pleas),  nor  false  evidence,  nor  move  nor  offer 
any  corruptions,  deceits,  tricks,  or  false  lies,  nor 
consent  to  any  such ;  but  truly  maintain  the  right  of 
his  clients,  so  that  it  fail  not  through  any  folly,  negli- 
gence, or  default  in  him.  Fourthly,  in  respect  to 
his  salary,  four  things  are  to  be  considered, — the 
value  of  the  cause;  the  pains  of  the  Serjeant;  the 
worth  of  the  pleader  in  point  of  knowledge,  elo- 
quence and  gifts;  the  usage  of  the  court.  And  a 
pleader  is  to  be  suspended  if  he  be  attainted  of  hav- 
ing received  fees  from  both  sides  in  the  same  cause; 
and  if  he  say  or  do  anything  in  contempt  of  court." 

The  ancient  law  of  England  required  litigants  to 
appear  in  person,  both  in  civil  and  criminal  cases. 
This  was  modified  later  on  in  civil  cases,  so  that  an 
attorney  in  fact  might  attend  in  the  stead  of  the  party. 
Then  in  the  old  records  we  see  the  same  name  ap- 
pearing again  and  again,  until  it  becomes  evident  that 
men  made  a  business  of  so  appearing;  and  thus  has 
come  the  attorney  who  appears  for  litigants  gen- 
erally. 

Gradually  the  attorney,  or  solicitor,  as  he  is  now 
called,  has  come  to  be  the  man  who  consults  with  the 
client  and  prepares  the  case  and  hands  it  over  to  the 


20  THE  ORIGIN  AND  DEVELOPMENT 

barrister  in  the  form  of  a  brief.  The  barrister  is 
seldom  permitted  to  come  in  contact  with  the  client. 

The  mayor  and  aldermen  of  London  in  1263 
passed  regulations  for  admission  to  practice,  and  or- 
dained that  "  no  counselor  [counter]  was  to  be  an 
attorney."  This  was  the  beginning  of  the  separation 
in  England  of  the  two  branches  of  the  legal  profes- 
sion. 

With  a  profession  recognized  by  the  king,  a  pro- 
fessional code  was  a  natural  growth. 

In  1275  a  statute  was  enacted  providing  that  "  if 
"  any  serjeant  counter,  or  any  other,  do  any  manner 
"  of  deceit  in  the  king's  court,  or  consent  unto  it  in 
"  deceit  of  the  court,  or  to  beguile  the  court  or  the 
"  party,  ...  he  shall  be  imprisoned  for  a  year  and 
"  a  day  and  from  thenceforth  shall  not  be  heard  to 
"  plead  in  that  court  for  any  man." 

Thus  the  respectability  of  the  Serjeants  and  bar- 
risters was  safeguarded.  The  crown  next  turned  its 
attention  to  the  attorneys. 

In  1292,  King  Edward  directed  his  justices  to  pro- 
vide for  each  county  a  sufficient  number  of  attorneys 
and  apprentices.  And  these  were  to  be  taken  from 
among  "  the  best,  the  most  lawful  and  most  teachable, 
"  so  that  the  king  and  people  might  be  well  served." 
One  hundred  and  fifty  was  the  number  fixed,  but  it 
might  be  increased  at  the  pleasure  of  the  judges.  It 
will  thus  be  noted  that  both  attorneys  and  counselors 


OF  THE  LEGAL  PROFESSION.  21 

in  England  derive  their  authority  to  practice  either 
mediately  or  immediately  from  the  king. 

In  1403  the  respectability  of  the  solicitors'  branch 
of  the  profession  was  further  safeguarded  by  a  stat- 
ute which  provided  for  an  examination  of  all  the  then 
practicing  attorneys  by  the  judges,  who,  in  their  dis- 
cretion, were  to  put  their  names  on  the  roll.  "They 
"  that  were  good  and  virtuous  and  of  good  fame 
"  should  be  received  and  sworn  well  and  truly  to 
"  serve  in  their  offices  .  .  .  and  the  other  attorneys 
"  should  be  put  out." 

Thus  were  the  morals  of  both  branches  of  the  pro- 
fession looked  after.  Since  those  early  times  acts  of 
Parliament  and  rules  of  court  have  from  time  to  time 
been  promulgated,  looking  to  the  education  and  train- 
ing of  the  bar,  as  well  as  to  its  morals. 

The  preparation  for  the  law,  the  honesty  of  the 
applicant,  and  the  continued  worthiness  of  the  lawyer 
after  admission  were  all  carefully  guarded  by  stat- 
ute and  rule.  But  it  pains  the  student  of  these  English 
institutions  to  find  so  little  to  suggest  that  the  lawyer 
was  under  any  positive  obligation  to  lend  his  aid  gra- 
tuitously to  the  oppressed.  This  I  believe  to  be  a 
matter  worthy  of  more  than  passing  notice,  and  I 
shall  take  it  up  later  on. 

Before  coming  to  the  American  bar,  let  us  consider 
for  a  moment  the  influence  of  the  Christian  religion 
upon  our  court  procedure  of  to-day,  particularly  in 


22  THE  ORIGIN  AND  DEVELOPMENT 

criminal  cases.  I  dwell  upon  the  criminal  procedure, 
rather  than  upon  civil  procedure;  for  we  may  know 
that  with  life  and  liberty  duly  protected  the  proper 
safeguards  for  property  are  also  assured. 

While  my  reading  has  led  me  to  no  writer  who  has 
yet  remarked  it,  one  cannot  but  be  impressed  that  our 
criminal  procedure  and  the  safeguards  thrown  about 
prisoners  in  our  American  courts  have  been  influ- 
enced greatly  by  the  judicial  murder  of  the  Saviour 
in  Jerusalem. 

Christ  was  charged  with  one  oflfense,  and  was  con- 
victed of  a  totally  different  ofifense  of  greater  degree. 
To-day,  in  the  courts  of  America,  no  man  can  be 
convicted  of  any  other  crime  than  that  with  which 
he  is  charged,  unless  it  be  a  lesser  degree  of  the  same 
crime. 

Christ  was  tried  with  the  utmost  haste.  With  us, 
even  in  flagrant  cases,  self-confessed  criminals  are  not 
rushed  with  indecent  haste  to  their  trial  or  punish- 
ment. 

Christ  was  not  confronted  with  his  witnesses.  This 
right  with  us  cannot  be  denied  to  the  lowest  wretch. 

Christ  was  made  a  witness  against  himself.  With 
us  no  prisoner  can  be  compelled  to  be  a  witness 
against  himself. 

Christ  was  maltreated,  tortured,  and  scourged 
while  in  custody.  We  see  sheriffs  laying  down  their 
lives  against  mobs  in  defense  of  prisoners,  often 
merely  that  the  prisoners  shall  have  a  fair  trial. 


OF  THE  LEGAL  PROFESSION.  23 

And  last,  but  not  least,  no  counsel  was  assigned  to 
the  defense  of  Christ! 

Watson,  in  his  "Life  of  the  Master,"  points  out  no 
less  than  five  flagrant  violations  of  the  Jewish  law  in 
the  proceedings  before  the  Sanhedrin;  but  there  was 
no  lawyer  there  to  cry  out  against  the  awful  wrong. 

Moreover,  no  one  can  read  the  Scriptural  account 
of  the  vacillating  conduct  of  Pontius  Pilate,  when 
called  upon  to  put  into  effect  the  infamous  sentence 
demanded  by  the  Sanhedrin,  without  feeling  sure 
that  a  single  strong  voice  lifted  up  in  the  Saviour's 
behalf  would  have  held  the  praetor  to  his  evident 
merciful  inclinations. 

Turn  now  to  the  effect  of  that  trial  upon  judicial 
history.  Who  has  not  heard  its  cruel  injustice  dwelt 
upon  in  the  pulpit?  It  has  been  a  favorite  theme 
among  Christian  speakers  from  the  days  of  the 
Apostles.  The  orations  of  the  worshipers  have  rung 
its  horrors  down  the  centuries. 

The  effect  is  what  we  might  well  expect.  When, 
after  three  hundred  and  fifty  years,  a  Christian  em- 
peror assumes  control  of  the  Roman  Empire,  we  find 
a  bar  regularly  organized,  bound  by  law  to  see  that 
both  plaintiff  and  defendant  are  represented  in  every 
cause;  and  we  see  the  praetor  turning  to  the  wretched 
prisoner  and  saying,  "  Si  non  habebunt  advocatum, 
"  ego  dabo," — "  If  you  have  no  advocate,  I  will  give 
"  you  one."^ 

'Justianian  Code. 


24  THE  ORIGIN  AND  DEVELOPMENT 

The  full  effect  of  the  conviction  of  Christ  upon 
criminal  procedure  did  not,  however,  mature  in  a 
day.  It  required  full  eighteen  hundred  years  of 
Christianity  to  safeguard  prisoners  even  in  England 
and  America  against  all  of  the  injustices  which  at- 
tended the  trial  of  the  Messiah. 

The  Christian  emperors  of  Rome  allowed  counsel 
to  prisoners,  but  they  compelled  the  accused  to  be  a 
witness  against  himself  and  put  witnesses  to  the  tor- 
ture to  make  them  confess. 

France,  following  the  civil  law,  permitted  the  bar 
of  France,  the  Noblesse  de  la  Robe,  to  speak  in  be- 
half of  prisoners.  She  nevertheless  compelled  pris- 
oners to  be  witnesses  against  themselves,  and  she  did 
not  abolish  the  torture  of  prisoners  and  witnesses  for 
the  purpose  of  forcing  confessions  or  testimony  until 
after  the  French  Revolution;  and  to  this  day  a  pris- 
oner in  a  French  court  is  compelled  to  testify  against 
himself,  and  is  put  through  a  merciless  series  of  ques- 
tionings at  all  stages  of  the  trial.  My  attention  has 
been  called  to  a  celebrated  murder  trial  occurring  at 
Tulle  in  1840,  in  which  the  prisoner  was  not  only 
catechised  at  every  stage  of  the  evidence,  but  hearsay 
testimony  was  introduced  against  her,  and  the  court 
received  evidence  of  a  theft  committed  by  her  three 
years  before  the  murder  and  in  no  manner  connected 
with  it. 

But  the  slowest  of  all  the  Christian  countries  to 


OF  THE  LEGAL  PROFESSION.  25 

yield  to  the  lessons  of  the  trial  and  conviction  at  Jeru- 
salem was  England.  Piteously  did  prisoners  on  trial 
for  their  lives  beg  to  be  confronted  by  their  accusing 
witnesses.  In  1571  the  Duke  of  Norfolk  besought  the 
court  to  compel  the  Bishop  of  Ross,  whose  examina- 
tion was  about  to  be  read  against  him,  to  confront  him 
and  give  evidence.  "  If  the  Bishop  of  Ross,  or  any 
"  other,"  he  said,  "can  say  otherwise,  let  them  be 
"  brought  before  me  face  to  face.  I  have  often  de- 
"  sired  it,  but  could  not  obtain  it."^  But  the  court 
refused. 

On  the  trial  of  Sir  Walter  Raleigh,  in  1603,  the 
evidence  of  Lord  Cobham,  taken  ex  parte,  was  read 
against  him.  Raleigh  pleaded:  "Let  Cobham  be 
"  here,  let  him  speak  it.  Call  my  accuser  before  my 
"  face  and  I  have  done.  ...  I  beseech  you,  my  lords, 
"  let  Cobham  be  sent  for.  Charge  him  upon  his  soul 
"  and  his  allegiance  to  the  king.  If  he  affirm  it — 
"  I  am  guilty."  ^  But  this  heart-touching  prayer  of 
an  innocent  man  was  all  in  vain. 

In  the  witchcraft  trials  in  England  between  1600 
and  1700  the  veriest  hearsay  was  admitted  to  prove 
the  prisoner's  guilt.  Torture  was  applied  to  a  liti- 
gant to  make  him  confess  as  late  as  the  reign  of  James 
the  First,  and  the  name  of  Francis  Bacon  is  connected 
with  the  case! 

'  I  State  Trials,  985. 
=  I  State  Trials,  15-18. 


26  THE  ORIGIN  AND  DEVELOPMENT 

In  Scotland  torture  was  in  use  until  the  union  of 
the  two  kingdoms,  and  was  not  abolished  until  the 
reign  of  Queen  Anne  in  1709.  Blackstone  tells  us  that 
a  defendant  charged  with  crime  was  not  permitted  to 
produce  any  evidence  whatever  in  his  own  behalf  in 
England  until  the  reign  of  Mary  (1516-1558),  and 
it  was  not  until  the  reign  of  Anne  ( 1701 )  that  a  pris- 
oner's witnesses  could  be  examined  on  oath. 

But  the  worst  remains  to  be  told.  In  England  no 
prisoner  charged  with  felony,  or  with  an  inferior 
treason,  was  permitted  to  have  his  case  argued  to  the 
jury  on  the  facts  until  1836!  Think  of  it!  Shakes- 
peare had  been  dead  two  hundred  and  nineteen  years 
before  any  English  lawyer  had  ever  lifted  up  his 
voice  in  an  English  court  in  defense  of  a  prisoner 
charged  with  murder!  And  how  piteously  they 
begged  that  counsel  be  allowed  them!  Not  only 
were  counsel  not  allowed  to  argue  the  facts  to  the  jury 
in  these  criminal  cases,  but  it  rested  wholly  with  the 
court  whether  a  question  of  law  was  worthy  of  suffi- 
cient consideration  for  the  prisoner  to  need  legal  ad- 
vice about  it. 

In  the  reign  of  Elizabeth  ( 1571 )  the  Duke  of  Nor- 
folk, on  trial  for  high  treason,  made  this  plea  in  vain : 
"  I  have  had  but  a  short  warning  to  provide  to  answer 
"  so  grave  a  matter.  I  have  not  had  fourteen  hours 
"  in  all,  both  day  and  night.  .  .  .  With  reverence  and 
"  humble  submission  I  am  led  to  think  I  may  have 


OF  THE  LEGAL  PROFESSION.  27 

"counsel.  ...  I  am  hardly  handled;  I  have  had 
"  short  warning  and  no  books. "^ 

Colonel  Lilburne,  in  1645,  after  entreating  his 
judges  again  and  again  to  be  allowed  counsel,  at  last 
cried  out,  but  without  avail:  "If  you  will  not  assign 
"  me  counsel  to  advise  and  consult  with,  I  am  resolved 
"  to  go  no  further,  though  I  die  for  it;  and  my  inno- 
"  cent  blood  be  upon  your  hands."  ^ 

Alice  Lisle,  before  the  able  but  terrible  Jeffreys,  in 

1685,  was  sent  to  her  death  for  having  harbored  in 

her  dwelling  a  dissenting  minister,  and  this  in  the 

absence  of  any  proof  that  she  knew  his  character. 

From  the  scaffold  she  impressed  these  burning  words 

upon  the  black  pages  of  English  judicial  history:  "I 

'  have  been  told  the  court  ought  to  be  counsel  for  the 

'  prisoner;  instead  of  which  there  was  evidence  given 

'  from  thence  which,  though  it  were  but  hearsay, 

*  might  possibly  affect  my  jury.     My  defense  was 

'  such  as  might  be  expected  from  a  weak  woman ;  but 

^  such  as  it  was,  I  did  not  hear  it  repeated  again  to 

'  the  jury.    But  I  forgive  all  persons  that  have  done 

'  me  wrong,  and  I  desire  that  God  will  do  likewise."^ 

With  no  bar  at  all  in  Massachusetts,  the  Salem 

witchcraft  trials  were  possible.    In  England,  with  a 

well-organized    bar, — with    Coke    and    Croke    and 

Francis  Bacon, — the  judicial  crimes  just  referred  to, 

'  I  State  Trials,  984.  3X1  State  Trials,  322. 

■^IV  State  Trials,  1329. 


28  THE  ORIGIN  AND  DEVELOPMENT 

and  hundreds  like  them,  were  possible.  But  they 
were  possible  only  because  the  bar  was  in  reality  but 
half  a  bar,  for  at  that  date  no  lawyer  could  address  a 
jury  on  the  facts  in  cases  of  high  treason  and  felony, 
and  no  lawyer,  save  at  the  pleasure  of,  perhaps,  a 
tyrant  on  the  bench,  could  in  such  cases  argue  even  to 
the  court  a  proposition  in  the  law  of  evidence  or  pro- 
cedure. While,  later  on,  this  restriction  was  removed 
in  cases  of  high  treason,  thereby  making  possible  the 
eloquence  of  Erskine,  the  restriction  continued  in 
cases  of  inferior  treason  and  felonies  until  1836,  as  I 
have  already  stated. 

Such  is  a  brief  sketch  of  the  slow  growth  of  crim- 
inal jurisprudence  in  England. 

The  apostolic  preaching  early  in  the  Christian  era 
brought  to  the  notice  of  men  the  judicial  wrongs  com- 
mitted at  Jerusalem,  and  we  not  only  find  many 
abuses  corrected,  but  we  see  advocates  appointed  by 
the  court  defending  prisoners  before  the  bar  of  Con- 
stantine's  tribunals. 

France,  following  with  its  civil  law  the  rules  of 
procedure  of  the  courts  of  the  Roman  Empire,  had 
allowed  counsel  to  prisoners  six  hundred  years  before 
England  was  moved  to  do  likewise.  In  England  the 
battle  between  the  Common  Law  and  the  Roman 
Law  had  given  the  former  a  supremacy  in  matters  of 
procedure. 

It  may  have  been  that  the  ritualistic  sermonizing 


OF  THE  LEGAL  PROFESSION.  29 

of  the  Church  of  England  was  less  favorable  to  a 
discussion  of  the  trial  before  the  Sanhedrin  than  was 
the  manner  of  preaching  prevalent  in  America.  But 
whatever  the  reason  was,  the  fact  remains  that  the 
Colonists,  long  prior  to  the  American  Revolution, 
had  broken  away  from  that  rule  of  the  English  law 
which  prevented  counsel  from  addressing  juries  on 
the  facts. 

The  history  of  the  American  bar  begins  with  the 
first  half  of  the  eighteenth  century. 

Prior  to  1700  it  can  hardly  be  said  that  there  was  a 
bar  in  the  Colonies. 

Virginia,  like  Massachusetts,  had  prohibited  men 
from  pleading  causes  for  pay,  and  while  this  re- 
striction was  removed  in  1666,  most  of  the  lawyers 
prior  to  1700  are  said  to  have  been  without  legal 
training.^ 

A  few  lawyers  were  scattered  through  the  Col- 
onies, but  the  general  situation  can  be  best  appre- 
hended when  we  learn  that  as  late  as  1747  there  were 
but  fifteen  college  graduates  in  the  whole  of  what  is 
now  the  State  of  New  York.^ 

A  change  came  with  the  first  half  of  the  eighteenth 
century. 

Connecticut  passed  laws  regulating  the  admission 
of  lawyers  as  regular  officers  of  the  court. 

'  "  Two  Centuries  of  American  Law." 
-lb. 


30  THE  ORIGIN  AND  DEVELOPMENT 

New  Jersey  laid  out  a  thorough  course  of  prepara- 
tion for  the  bar,  and  established  the  degree  of  Ser- 
jeant at  law  as  the  crowning  honor  for  a  successful 
counselor. 

Many,  particularly  from  the  South,  went  to  Eng- 
land and  were  educated  for  the  bar  at  the  Inns  of 
Court.  The  bar  of  Maryland  was  particularly 
strong  in  men  of  ability,  though  it  was  few  in  num- 
bers. 

There  was  a  strong  bar  in  Boston  by  the  middle  of 
the  eighteenth  century.  John  Adams  alludes  to  the 
fact  that  in  1750  law  students  were  numerous. 

The  judges  in  New  Jersey  and  Massachusetts,  and 
perhaps  in  other  colonies,  wore  official  gowns. 

Adams,  speaking  of  the  year  1761,  when  he  was 
sworn  as  a  barrister  before  the  Superior  Court  in 
Massachusetts,  says:  "About  this  time  the  project 
"  was  conceived,  I  suppose  by  the  Chief  Justice,  Mr. 
"  Hutchinson,  of  clothing  the  judges  and  lawyers 
"  with  robes.  Mr.  Quincy  and  I  were  directed  to 
"  prepare  our  gowns  and  bands  and  tie-wigs,  and 
"  were  admitted  barristers,  having  practiced  three 
"  years  in  the  inferior  courts,  according  to  one  of  the 
"  new  rules." 

Mr.  Gridley,  a  leading  Boston  barrister,  pointed 
out  to  Adams,  in  1758,  the  wide  range  of  the  Ameri- 
can lawyer's  duties — a  range  which  has  brought  to 
our  bar  its  breadth:  "A  lawyer,"  he  says,  "in  this 


OF  THE  LEGAL  PROFESSION.  3 1 

"  country  must  study  common  law,  and  civil  law,  and 
"natural  law,  and  admiralty  law;  and  must  do  the 
'^  duty  of  a  counselor,  a  lawyer,  an  attorney,  a  soli- 
*'  citor,  and  even  of  a  scrivener,  so  that  the  difficulties 
"  of  the  profession  are  much  greater  here  than  in 
"  England."^ 

During  the  first  fifty  years  of  the  eighteenth  cen- 
tury, a  humanity,  born  of  religion  and  of  its  lessons, 
was  nestling  in  the  same  cradle  with  the  infant 
American  bar.  We  find  this  humanity  manifesting 
itself  in  such  expressions  as  the  following,  which  I 
quote  from  a  letter  written  in  October  of  that  year 
by  John  Adams  to  his  friend  Sewall — afterwards 
Judge  Sewall:  "Now,  to  what  higher  object,  to  what 
"  greater  character,  can  any  mortal  aspire  than  to  be 
"  possessed  of  all  this  knowledge,  well  digested  and 
"  ready  at  command,  to  assist  the  feeble  and  friend- 
"  less,  to  discountenance  the  haughty  and  lawless,  to 
"  procure  redress  of  wrongs,  the  advancement  of 
"  right,  to  assist  and  maintain  liberty  and  virtue,  to 
"  discourage  and  abolish  tyranny  and  vice." 

Eleven  years  later  these  high  ideals  of  John 
Adams  found  tangible  expression  in  his  own  splendid 
conduct.  In  1770,  at  the  risk  of  ambition,  at  the  risk 
of  losing  wholly  his  great  and  hard-earned  popu- 
larity, John  Adams,  at  the  command  of  his  chosen 
profession  braved  being  branded  as  a  traitor  to  the 

■John  Adams's  Works,  Vol.  II,  p.  46. 


32  THE  ORIGIN  AND  DEVELOPMENT 

cause  of  American  liberty,  for  which  he  had  stood. 

This  he  did  by  undertaking  the  defense  of  Captain 

Preston,  a  British  officer,  and  his  British  soldiers, 

who  were  charged  with  murder  for  having  fired 

upon  a  so-called  "Boston  patriot  mob."     Let  John 

Adams's  words,  spoken  when  told  that  two  lawyers 

had  hesitated   about  taking  the  employment,   ring 

forever  in  every  American  lawyer's  ears! 

He  said: — 

"  Counsel  ought  to  be  the  last  thing  for  which  an 
accused  person  should  want  infgi  free  country.  The 
bar  ought  to  be  independent  and  impartial  at  all 
times  and  in  every  circumstance,  and  persons  whose 
lives  are  at  stake  ought  to  have  the  counsel  they 
prefer.  ...  If  the  accused  thinks  he  cannot  have 
a  fair  trial  without  my  assistance,  without  hesita- 
tion he  shall  have  it."^ 

Cradled  with  such  lofty  conceptions  of  profes- 
sional duty,  is  it  a  miracle  that  the  American  bar 
leaped  forth  full-panoplied?  Is  it  to  be  wondered  at 
that  of  the  fifty-seven  signers  of  the  Declaration  of 
Independence  thirty  were  lawyers?  Is  it  a  matter  of 
surprise  that  the  Constitution  of  the  United  States 
ever  since  1789  has  contained  the  following  provi- 
sion: "In  all  criminal  prosecutions  the  accused  shall 
"  enjoy  the  right  ...  to  be  informed  of  the  nature 
"  and  cause  of  the  accusation;  to  be  confronted  with 
"  the  witnesses  against  him;  to  have  compulsory  pro- 

'  John  Adams's  Works,  Vol.  II,  pp.  230-231. 


OF  THE  LEGAL  PROFESSION.  33 

"cess  for  obtaining  witnesses  in  his  favor;  and  to 
"  have  the  assistance  of  counsel  for  his  defense^^?  ^ 

With  the  spirit  of  John  Adams  and  of  the  young 
American  bar  and  of  Christian  liberty  thus  breath- 
ing in  the  Nation's  organism,  it  is  but  natural  that 
the  American  lawyer  should  have  felt  the  inspira- 
tion; that  he  should  be  found  on  the  battle-fields  of 
his  country  and  in  the  Congress  of  the  Nation.  We 
are  even  prepared  to  learn  that  seventeen  of  the 
twenty-five  Presidents  of  the  United  States  have  been 
members  of  the  American  bar! 

Daniel  Webster,  born  in  1782,  and  admitted  to  the 
bar  in  1805,  had  been  practicing  law  under  that  Con- 
stitution and  addressing  juries  in  defense  of  prisoners 
charged  with  felonies  for  more  than  thirty  years  be- 
fore any  English  lawyer  had  ever  been  permitted 
to  point  out  to  an  English  jury  wherein  the  evidence 
was  wholly  and  utterly  insufficient  to  convict  an  ac- 
cused man  of  the  terrible  charge  of  robbery,  incest, 
rape,  or  murder! 

The  various  States  of  the  Union  have  very  gen- 
erally inserted  provisions  in  their  constitutions  simi- 
lar to  that  just  quoted  from  the  Federal  Constitution. 
For  example,  the  organic  law  of  our  own;  State 
declares  that — ''  In  criminal  prosecutions  in  any 
"  court  whatever,  the  party  accused  shall  have  the 
"  right  ...  to  appear  and  defend  in  person  and 
"  with  counsel." 

'  Amendment  No.  VI H. 


34  THE  ORIGIN  AND  DEVELOPMENT 

So  long  as  these  constitutions  endure,  there  will 
be  a  legal  profession,  with  its  rights  and  privileges, 
and  its  corresponding  duties  and  obligations.  The 
presence  of  a  lawyer  at  the  trial  of  a  prisoner  charged 
with  crime  no  longer  depends  upon  the  caprice  or 
favor  of  the  party  in  power.  It  rests  upon  a  firmer 
foundation.  It  is  guaranteed  by  the  organic  law 
of  both  State  and  Nation. 

It  is  gratifying  that  England,  to  which  our  juris- 
prudence owes  a  great  and  ever-increasing  debt, 
should  have  found  in  the  Constitution  of  the  United 
States  so  splendid  a  gift  to  the  Anglo-Saxon  race 
as  is  this  right  of  the  accused  to  be  defended  by 
counsel. 

And  before  I  leave  this  subject  let  me  call  atten- 
tion to  the  fact  that  this  is  not  all  that  the  bar  of 
America  has  given  to  England.  It  was  in  1787  that 
the  Federal  Constitution  vested  the  whole  judicial 
power  in  one  Supreme  Court  and  in  such  inferior 
courts  as  Congress  may  establish.  And  that  Su- 
preme Court  has  jurisdiction  both  at  law  and  in 
equity.  Most  of  the  States  in  the  organization  of 
their  courts  have  been  swift  to  follow  this  plan,  and 
it  was  but  another  step  to  the  reformed  procedure 
which  permitted  one  court  in  one  action  to  grant 
all  of  the  relief  which  in  England  could  be  obtained 
only  by  an  appeal  to  two  distinct  courts.  In  other 
words,  separate  courts  of  law  and  equity  were  abol- 


OF  THE  LEGAL  PROFESSION.  35 

ished.  New  York  adopted  this  reformed  procedure 
in  1847.  California  has  possessed  it  from  1850. 
And — mirabile  dictu! — in  1873  England — conserva- 
tive England! — with  one  mighty  sweep,  blots  out  all 
of  her  ancient  and  time-honored  courts  and  estab- 
lishes the  American  judicial  system! 

Think  of  the  awful  slaughter!  The  Court  of 
Queen's  Bench,  High  Court  of  Chancery  of  Eng- 
land, Court  of  Common  Pleas  at  Westminster,  the 
Courts  of  Exchequer,  the  High  Court  of  Admiralty, 
the  Court  of  Probate,  the  Court  for  Divorce  and 
Matrimonial  Causes,  and  the  London  Court  of  Bank- 
ruptcy, taken  at  one  fell  swoop,  and  their  place 
supplied  with  the  "  Supreme  Court  of  Judicature," 
— the  very  name,  as  well  as  the  theory,  borrowed 
from  the  constitution  of  the  State  of  New  York. 

I  take  it  that  the  first  American  invasion  of  Eng- 
land was  a  lawyers'  invasion,  and  that  Commerce, 
steered  by  Justice,  went  onward  with  the  flood! 

It  must  be  evident  to  you  all  that  never  since 
history  began  has  so  broad,  so  proud,  so  responsible 
a  position  been  given  to  any  bar  as  that  which  our 
governments.  State  and  National,  have  in  their  con- 
stitutions permanently  conferred  upon  the  legal 
profession  of  America. 

No  one  admires  the  sterling  integrity,  the  pro- 
found learning,  the  splendid  achievements,  and  the 
present  exalted  position  of  the  bench  and  bar  of 


36  THE  ORIGIN  AND  DEVELOPMENT 

England  more  than  I  do.  And  I  would  not  seem 
ungracious  nor  ungrateful ;  for  our  bar  owes  so  much 
to  that  bench  and  bar  that  other  than  courteous  and 
friendly  criticism  would  be  most  unbecoming,  and 
it  is  in  a  spirit  of  friendly  and  courteous  criticism 
that  I  shall  speak  of  the  English  bar. 

England,  by  her  statutes  and  court  rules,  has  during 
the  last  seven  centuries  provided  well  for  the  hon- 
esty and  education  and  the  respectability  of  the  legal 
profession.  But  I  am  able  to  find  neither  statute 
nor  court  rule  which  leads  me  to  think  that  she  has 
provided  equally  well — at  least  by  positive  regula- 
tion— for  the  humanity  of  the  profession.  I  cannot 
find  that  any  English  lawyer  assumes  any  obligation 
to  heed  the  cries  of  the  indigent  and  oppressed,  or 
that  he  is  bound,  even  upon  the  court's  direction, 
to  represent,  without  compensation,  a  prisoner 
charged  with  crime.  Let  me  cite  to  you,  lawyer- 
like, two  cases,  in  order  to  point  my  meaning.  You 
have  already  noted  that  England  was  slow — very 
slow — to  allow  counsel  to  prisoners  charged  with 
high  crimes  and  felonies.  Now,  with  that  in  mind, 
please  listen  to  this  story, — Reg.  v.  Andrew  Fogarty, 
tried  in  185 1.    I  quote  it  from  Cox's  Crown  Cases: — 

"  In  this  case  the  prisoner  was  charged  with  the 
"  murder  of  his  wife,  Margaret  Fogarty,  by  adminis- 
"  tering  to  her  a  dose  of  arsenic,  at  Kilkeel,  on  the 
"26th  of  July,  1850. 


OF  THE  LEGAL  PROFESSION.  37 

"  Chief  Baron  Pigott,  after  conferring  with  the 
"  Crown  Solicitor,  addressed  Mr.  MacMeehan,  and 
"  requested  that  he  would  undertake  the  defense  of 
"  the  prisoner,  who  was  unable  to  employ  attorney 
"  or  counsel. 

"  MacMeehan  replied  that  he  had  no  objection 
"  personally  to  act,  but  there  was  a  feeling  and  opin- 
"  ion  existing  on  the  subject  among  the  bar  which 
''  compelled  him  to  beg  that  his  lordship  would 
"  excuse  him  for  declining.  After  some  conference 
"  among  the  members  of  the  bar.  Sir  Thomas  Ste- 
"  pies,  Q.  C,  rose  and  addressed  the  court.  He  said 
"  that  on  the  part  of  the  bar  he  thought  it  right  to 
"  state  that  there  was  a  feeling  among  them,  in  which 
"  he  quite  concurred,  that  no  counsel  could  with  pro- 
"  priety,  undertake  the  defense  of  a  prisoner  without 
"  receiving  instructions  from  an  attorney. 

"  Pigott,  C.  B.,  said  that  with  respect  to  the  assign- 
"  ment  of  counsel  and  attorney  for  a  prisoner  it  was 
"  his  opinion  that  a  judge  might  with  propriety  call 
"  on  a  barrister  to  give  his  honorary  services  to  a 
"prisoner  who  was  unable  to  employ  one;  but  he 
"  thought  the  case  different  as  regarded  an  attorney; 
"...  that  he  could  not  compel  counsel  to  act;  he 
"  could  do  no  more  than  appeal  to  the  sense  of  feel- 
"  ing  of  the  bar." 

I  have  diligently  searched  the  English  reports,  and 
I  can  find  no  case  which  has  changed  or  modified 
that  ruling. 

Turn  now  to  the  case  of  People  v.  Goldenson,  76 
Cal.,  pages  336-344,  decided  in  1887.  It  appears 
from  the  record  there  that  when  Goldenson  was 
brought  to  trial  in  San  Francisco,  on  February  16, 
1887,   "the  court  informed  the   defendant  that  he 


38  THE  ORIGIN  AND  DEVELOPMENT 

"  might  name  any  attorney  in  the  city  to  defend  him, 
''  and  he  would  be  sent  for  and  appointed,  and  that 
"  he  would  be  given  a  reasonable  time  to  prepare 
"  for  trial." 

Imagine  a  California  lawyer  hesitating  at  such  an 
appointment!  He  would  not  only  be  ostracized  and 
shunned  by  his  fellows,  but  he  would  be  thrown  into 
jail  for  contempt  and  disbarred. 

The  fact  is,  that  we  must  thank  the  ancient  bar  of 
France — the  Noblesse  de  la  Robe — for  the  distinct 
recognition  of  those  humane  ideals  which  are,  per- 
haps, the  proudest  obligation  that  is  taken  upon  him- 
self to-day  by  every  member  of  the  bar  of  this  State. 

The  bar  of  France  was  recognized  as  a  lesser 
order  of  nobility  from  the  fourteenth  century  down 
to  the  French  Revolution.  It  flourished  side  by  side 
with  knighthood,  and  no  chevalier  of  France  as- 
sumed loftier  obligations  than  did  the  Nobility  of  the 
Robe.  The  rules  of  the  order,  as  early  as  1360,  after 
laying  down  divers  wholesome  regulations,  in  which 
are  embodied  the  highest  ethical  standards  of  to-day, 
declared  as  its  noble  climax  that  no  member  of  the 
bar  of  France,  "  under  pain  of  being  debarred, 
"  should  refuse  his  services  to  the  indigent  and  op- 
"  pressed." 

I  look  in  vain  for  statute,  text-book,  or  report  to 
point  a  similar  obligation  upon  the  bar  of  England. 

It  was  not  to  be  expected  that  the  bar  of  France, 


OF  THE  LEGAL  PROFESSION.  39 

nurtured  upon  such  chivalrous  ideals  as  I  have  men- 
tioned, would  be  found  wanting  in  hours  of  deep 
national  distress.  When  Louis  the  Sixteenth  went  to 
his  trial,  did  any  man — did  Louis — doubt  the  result? 
It  meant  death  to  the  king.  It  meant  death  to  his 
advocate.  But  can  you  not  see  Malesherbes  as  he 
answers  the  fatal  call?  "  I  have  twice  been  sum- 
"  moned,"  said  he,  "  to  the  councils  of  him  who  was 
"  my  master  when  all  the  world  coveted  the  honor. 
"  I  owe  him  the  same  service  now,  when  all  men 
"  regard  it  perilous." 

The  obligation  of  the  Noblesse  de  la  Robe  is  ra- 
diant with  the  spirit  of  chivalry,  and  that  same  obli- 
gation is  the  birthright  and  the  heritage  of  every 
member  of  the  California  bar  to-day.  Coming  to  us 
from  France,  through  the  Canton  of  Geneva,  it  has 
been  assumed  by  every  man  who  has  been  admitted  to 
the  bar  of  California  these  thirty  years  and  more. 
Ever  since  1872  it  has  been  our  law  that  it  is  the  duty 
of  every  attorney  and  counselor  "never  to  reject,  for 
"  any  consideration  personal  to  himself,  the  cause  of 
"  the  defenseless  or  the  oppressed." 

The  license  to  practice  law  in  this  state  is  not  a 
patent  of  titled  nobility,  but  it  is  a  patent  of  a  still 
greater  moment.  It  is  a  patent  of  lofty,  chivalrous 
ideals;  a  patent,  which  if  accepted  in  its  spirit,  and 
lived  up  to  in  its  enjoyment,  is  a  patent  for  a  life  of 
purpose,  for  a  life  of  usefulness,  for  a  life  of  charac- 
ter, of  honor,  and  of  good. 


40  THE  ORIGIN  AND  DEVELOPMENT 

There  is  much  to  be  done  in  our  profession. 
Many  are  there  who  should  not  be  there.  But  the 
profession  of  the  law  is  property,  and  none  can  be 
deprived  of  it  without  due  process  of  law.^  Our 
courts  cannot,  as  did  the  English  courts  of  old,  issue 
drastic  orders  that  the  rolls  shall  be  examined,  and 
the  lawyers  who  are  virtuous  and  of  good  fame 
shall  be  retained  and  the  others  shall  be  put  out.  It 
is  only  upon  specific  charges,  duly  proved,  that  our 
rolls  can  be  purged;  and  this  method  can  never 
reach  those  whose  only  offense  is  that  they  are  in- 
competent. The  remedy  is  to  be  found  in  the  exer- 
cise of  more  care  in  the  admission  to  the  bar  of  new 
members.  Let  the  profession  be  built  up  from  with- 
out. Let  us  turn  to  the  Universities.  Let  us  exact 
in  every  case  a  thorough  preparation  for  the  study 
of  the  law  and  a  thorough  course  in  the  law.  Let  us, 
in  other  wordSj  obediently  follow  the  course  pointed 
out  by  Blackstone.  England,  heedless  of  his  advice, 
has  clung  to  her  ancient  method,  the  Inns  of  Court; 
America,  where  Blackstone's  influence  has  been  most 
strongly  felt,  made  haste  to  heed  his  advice. 

A  lectureship  on  law  was  established  by  Thomas 
Jefiferson  at  William  and  Mary  College  in  1792. 
It  was  in  attendance  upon  those  lectures  that  John 
Marshall  laid  the  foundation  for  his  judicial  career. 
By  a  process  of  development,  the  plan  of  Blackstone 

'  Ex  Parte  Garland,  71  U.  S.  333. 


OF  THE  LEGAL  PROFESSION.  4 1 

has  gradually  been  taken  up,  until  now  the  country 
is  becoming  rich  in  great  law  schools  and  universities 
with  law  departments. 

The  next  step  must  be  to  make  the  law  schools  and 
universities  the  necessary  pathway  to  the  American 
bar.  This  will  work  a  hardship  in  individual  cases. 
Such  preparation  is  not  necessary  to  the  bread-and- 
butter  aspect  of  the  profession,  and,  in  occasional 
instances,  the  time  could  be  used  to  the  greater  ad- 
vantage of  the  student  if  he  were  permitted  to  take 
a  short  cut  to  the  profession.  But  the  good  of  the 
whole  profession  and  the  welfare  of  the  whole  nation 
demand  the  course  I  suggest. 

A  nation  can  advance  no  better  with  an  ill- 
equipped  bench  than  it  can  without  any  bar  at  all. 
The  bench  must  needs  be  drawn  from  the  ranks  of 
the  legal  profession.  The  nature  of  our  institutions 
is  such  that  it  seems  unlikely  that  our  judiciary  will 
ever  be  so  well  paid  by  the  people  that  the  rule  will 
be  for  the  very  ablest  men  in  the  profession  to  go 
upon  the  bench. 

This  places  a  heavier  responsibility  upon  the  bar 
to  see  that  justice  is  well  administered  than  rests  upon 
the  bar  of  England,  for  there  each  judge  of  the  Su- 
preme Court  of  Judicature  receives  some  twenty-five 
thousand  dollars  per  annum,  with  the  result  that  Eng- 
land's ablest  lawyers  look  forward  to  these  judicial 
positions.     The  result  is,  that  her  judges  are  men 


42  THE  ORIGIN  AND  DEVELOPMENT 

of  wide  experience,  of  mature  years,  and  of  great 
learning  and  ability, — in  fact,  the  natural  leaders  of 
her  bar, — and  the  whole  bar  looks  up  to  them. 

In  view  of  our  American  system  and  salaries,  we 
have  been  peculiarly  fortunate,  it  must  be  admitted, 
in  getting  for  our  highest  tribunals  so  many  able 
lawyers, — and  California  during  the  entire  period  of 
her  statehood  has  been  fairly  lucky  in  this  regard; 
but  no  well-informed  man  will  deny  that  such  is  not 
always  the  case,  and  that  there  are  those  on  the  bench 
to-day — particularly  in  our  Superior  Courts — who 
have  no  business  to  be  there.  In  these  cases  it  is  more 
often  that  a  legal  education  and  a  proper  training 
is  absent  than  that  integrity  or  ability  is  wanting. 
An  ignorant  judge  is  almost  as  dangerous  to  a  com- 
munity as  a  corrupt  judge,  and  some  hold  an  ignorant 
judge  to  be  even  the  more  dangerous  of  the  two. 

If  the  people  would  improve  the  bench,  they  have 
a  right  to  look  to  the  bar  for  the  remedy.  If  the  bar 
would  improve  the  bench,  it  must  first  improve  it- 
self. And  there  is  no  way  so  certain  to  bring  the 
bar  to  a  proper  standard  as  to  insist  that  the  sugges- 
tions of  Blackstone  regarding  legal  education  shall 
be  followed  out  and  inexorably  demanded.  You 
may  wait  till  doomsday  for  the  graduates  of  law- 
offices  to  bring  to  the  profession  a  higher  standard 
than  the  prevailing  standards  of  their  respective 
offices.    A  stream  will  not  rise  higher  than  its  source. 


OF  THE  LEGAL  PROFESSION.  43 

You  cannot  pluck  a  pearl  of  ethics  from  the  shop  of 
a  shyster. 

It  is  in  the  academic  atmosphere  that  the  true 
ethical  side  of  the  profession  must  be  absorbed.  In 
the  hurry  of  an  active  law-office  the  mechanics  of 
the  profession  may  be  acquired,  but  its  ethics  must 
generally  be  inhaled  elsewhere. 

And  never  did  the  country  have  a  better  right  to 
look  to  bench  and  bar  to  meet  the  demands  of  the 
times.  The  law,  always  a  progressive  science,  was 
never  stepping  with  advancing  strides  more  rapidly 
than  now.  And  it  behooves  the  bar  to  look  well  to 
itself  and  to  the  bench. 

The  great  problems  of  labor  and  capital  are  be- 
fore the  courts  as  never  before.  Labor  is  dictating 
who  shall  be,  and  who  shall  not  be,  employed  and 
discharged.  What  is  to  be  the  effect  of  this  changed 
condition  upon  the  law  of  master  and  servant?  What 
is  to  be  its  effect  upon  the  law  of  damages  against 
the  employer  for  acts  committed  through  the  care- 
lessness or  negligence  of  the  employee?  The  present 
rules  of  law  on  the  subject  are  based  upon  the  theory 
that  the  master  is  responsible  for  the  conduct  of  those 
whom  he  employs  of  his  own  volition.  Will  the 
changed  conditions  affect  the  rule?  This  is  but  one 
of  the  innumerable  questions  which  suggest  them- 
selves, and  some  are  of  far  deeper  moment  than 
the  one  just  mentioned. 


44  THE  ORIGIN  AND  DEVELOPMENT 

The  mammoth  aggregations  of  capital  which  in 
these  days  stagger  one's  conception  of  figures  give 
rise  to  new  and  most  important  questions  of  public 
policy.  The  changed  demands  upon  our  nation 
since  the  Spanish  war  has  given  rise,  and  will  con- 
tinue to  give  rise,  to  most  important  constitutional 
questions,  requiring  for  their  solution  not  only  a 
high  order  of  intelligence  and  legal  learning,  but  a 
high  order  of  statesmanship  as  well. 

History  is  making  very  fast.  An  ever-increasing 
strain  is  being  put  upon  our  national  institutions. 
The  permanency  of  our  liberties  rests  with  our  courts. 
The  character  of  our  courts  is  determined  by  the 
character  of  our  bar.  It  is  not  too  much  to  insist, 
for  the  welfare  of  the  whole  people,  that  a  learned 
profession,  charged  with  such  enormous  patriotic  du- 
ties and  responsibilities,  shall  be  a  learned  profession 
indeed,  and  that  the  foundation  for  its  high  obliga- 
tions shall  be  laid  well  and  deep. 

I  would  not  have  you  think  that  I  decry  the  bench 
and  bar  of  to-day.  I  acknowledge  frankly  that  both 
bench  and  bar  have  a  weakness,  in  that  there  are 
too  many  ill-trained,  unread,  ignorant  men  among 
their  numbers.  I  would  see  this  condition  improve, 
and,  through  raising  the  standard,  and  with  the  help 
of  the  universities,  I  expect  to  see  it  improve.  But 
with  all  that  admitted,  I  believe  that  never  before 
in  its  history  has  the  bar  been,  as  a  whole,  so  well 
equipped  for  its  duties  as  it  is  to-day. 


OF  THE  LEGAL  PROFESSION.  45 

It  has  been  natural  for  man  since  the  beginning 
of  literature  to  look  upon  the  distant  past  as  contain- 
ing everything  that  is  good,  while  he  has  decried  the 
decadence  of  his  own  day  and  generation.  Despite 
its  many  faults  and  imperfections,  I  believe  that  the 
bar  of  America  to-day  will  bear  comparison  with 
that  of  any  period  in  our  country's  growth.  And 
I  believe  that  the  American  lawyer,  combining  as 
he  does  the  duties  of  attorney  and  counselor^  of  ad- 
vocate and  jurisconsult,  practicing  in  courts  which 
dispense  both  law  and  equity,  and  pleading  his  causes 
under  the  humane  guarantees  of  our  State  and  Fed- 
eral constitutions,  may  rightfully  claim  the  leader- 
ship of  the  hosts  of  the  world  of  law. 

You  already  know  why  I  will  not  give  the  suprem- 
acy to  the  English  bar.  The  reason  is  fundamental. 
Chivalry — love  of  man  for  man,  not  mere  love  of 
man  for  books — is  the  basic  principle  of  the  profes- 
sion, for  it  had  its  origin  in  the  human  sympathies, 
and  the  English  bar  has  been  too  tardy  in  recognizing 
this. 

Chivalrous  as  is  the  bar  of  France,  her  criminal 
procedure  is  essentially  wrong,  according  to  Ameri- 
can standards.  Her  bar,  as  I  see  it,  tries  its  criminal 
cases  before  a  mediaeval  tribunal,  whose  procedure  is 
little  better  than  an  inquisition. 

The  German  system  knows  no  jury.  Three  judges 
sit  in  the  trial  of  criminals.    The  bar  is  admirably 


46  THE  ORIGIN  AND  DEVELOPMENT 

trained,  so  far  as  reading  goes,  but  the  hard-and- 
fast  rules  as  to  its  compensation,  placing  the  most 
able  and  skillful  on  the  same  plane  with  the  less 
worthy,  coupled  with  the  absolute  sameness  of  prep- 
aration, seem  to  me  to  give  but  little  incentive  to 
those  who  would,  under  a  different  system,  be  am- 
bitious to  advance. 

The  absence  in  Germany  of  the  jury  system  in 
criminal  cases  I  also  consider  most  detrimental  to  the 
interests  of  substantial  justice.  I  believe  that  in  our 
system  the  jury  in  civil  cases  might  be  abolished  with- 
out detriment  to  the  administration  of  justice.  The 
system  of  law  and  equity  is  a  system  of  check  and 
balance.  It  is  fitted  to  meet  all  emergencies,  and  the 
trained  mind  of  a  conscientious  jurist  will,  in  general, 
be  more  safely  trusted  with  intricate  questions  of  fact 
than  will  the  mind  of  the  average  untrained  jury- 
man. But  not  so  in  the  criminal  law.  There  the 
commands  are  positive.  The  demands  of  society 
make  it  impossible  to  prescribe  by  statute  a  system 
of  equitable  correction.  Judges  on  the  bench,  sworn 
to  uphold  the  hard-and-fast  rules  of  the  criminal 
statutes,  knowing  well  what  the  written  law  pre- 
scribes, and  just  what  that  language  means,  are  not 
permitted  to  read  between  the  lines.  Where  the 
law  is  infringed  the  statute  is  the  major  premise; 
the  facts  of  the  particular  case  are  the  minor 
premise;    and   the  judgment   of   conviction   is   the 


OF  THE  LEGAL  PROFESSION.  47 

necessary  conclusion.  The  court  cannot  with  con- 
science inject  any  equitable  ideas  of  its  own  into  the 
syllogism. 

Yet  we  know  that  there  are  cases  which  come  with- 
in the  letter  of  the  positive  law, — which  are  within 
none  of  the  exceptions  positively  laid  down, — and  yet 
we  feel  that  the  circumstances  are  such  that  the  harsh 
rule  of  law  should  not  be  applied.  It  is  in  such 
cases  that  juries  refuse  to  be  bound  by  the  instruc- 
tions of  the  court,  and  generally  work  out  a  rough 
though  substantial  justice. 

I  have  somewhere  read  a  story  which  will  illus- 
trate my  meaning:  A  woman  on  one  of  the  islands 
subject  to  Greek  rule  was  convicted  of  the  murder 
of  her  husband  and  stepson.  The  fact  appeared 
that  she  had  overheard  the  two  plotting  to  murder 
her  beloved  son  by  her  first  husband,  and  in  a  frenzy 
at  their  contemplated  crime,  she  had  killed  them  both. 
But  there  was  nothing  in  the  Greek  law  which  ex- 
cused murder  under  such  circumstances,  and  the  wo- 
man was  condemned  to  death.  She  appealed  to  an 
appellate  tribunal  in  Athens,  and  the  wise  judges  of 
the  Athenian  court,  after  hearing  the  facts,  felt  com- 
pelled to  affirm  the  judgment,  but  commanded  that 
the  woman  appear  before  them  at  the  end  of  exactly 
one  hundred  years,  then  and  there  to  receive  the 
sentence  of  death! 

Modern  criminal  law  is  not  flexible  enough  for  our 


48  THE  ORIGIN  AND  DEVELOPMENT 

judges  to  imitate  the  Greek  court  of  the  story.  The 
remedy  is  with  the  jury. 

I  have  impressed  you  with  my  point  if  you  get 
from  me  the  idea  that  the  jury  system  in  criminal 
cases  is  to  the  criminal  law  what  equity  is  to  the  stat- 
ute and  common  law.  It  serves  to  check  and  balance 
the  rules  of  law  in  those  cases  where  the  universality 
of  those  rules  would  work  injustice. 

Wrongs  have  been  done  by  juries  in  criminal  cases, 
and  wrongs  will  continue  to  be  done  by  them.  But 
such  miscarriages  of  justice  are  incidental  to  all 
human  systems.  After  all  is  said,  the  trial  by  jury 
in  criminal  cases  is  the  most  humane,  and  in  the  end 
the  most  conducive  to  the  peace  and  order  of  society 
of  any  system  thus  far  conceived. 

So,  long  live  the  trial  by  jury  in  criminal  cases! 
Long  live  the  system  which  provides  that  the  hum- 
blest citizen  charged  with  crime  shall  have  twelve 
liberty-loving  chancellors  to  correct  for  him  the  law, 
if,  by  reason  of  its  universality  it  would,  in  his  case, 
work  an  injustice! 

I  return  to  the  American  bar  with  satisfaction. 

Other  systems  may  produce  men  who,  on  the  aver- 
age, are  more  highly  specialized  and  deeply  learned 
in  particular  branches;  but  it  requires  something 
more  than  deep  learning  to  make  the  ideal  lawyer. 
He  must  have  head  and  training  and  character  and 
breadth,  and  he  must  have  the  American  lawyer's 


OF  THE  LEGAL  PROFESSION.  49 

heritage — the  heart  of  John  Adams.  John  Adams's 
conception  of  his  profession  and  its  duties  is  to-day 
the  spirit  of  the  American  bar! 

Despite  what  disappointed  litigants,  modern  sati- 
rists, or  carping  cynics  may  say,  the  history  of  the 
bar  of  America,  with  few — so  few — exceptions,  may 
be  written  thus:  It  is  a  record  of  unbroken  faith; 
it  is  a  record  of  enormous  confidences  reposed  and 
none  betrayed;  it  is  a  record  which  tells  that  men 
and  women  have  given  their  property,  their  reputa- 
tions, their  homes,  their  children,  and  their  lives  into 
the  keeping  of  that  profession,  and  have  ever  found 
it  faithful  to  the  sacred  trust;  it  is  a  record  of  ines- 
timable service  to  State  and  Nation  in  time  of  war  and 
peace;  a  record  of  a  visible  choir,  chanting  in  unison 
and  with  compelling  fervor  the  immortal  music  of 
Liberty. 


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